Category Archives: criminal law principles

Here is another in the long line of legal fictions: that you get an impartial jury of your peers. Let’s leave aside the peer part for now, because there’s already been much study on the lack of any real peers in juries selected these days and focus on the “impartial” part.

Impartial, in this context, is supposed to mean someone who doesn’t come to the trial with any predispositions. Someone who is able to be fair, listen to the evidence, and conscientiously apply the law to the facts, regardless of whether one emotionally agrees with the result compelled by those facts.

In reality, we aren’t stone robots. Everyone comes in with preconceived notions. In these days of increasing polarity, we have ever stronger opinions about crime and criminal justice and especially those icky child molesters.

So we come to our legal fiction: rehabilitation. That’s when the judge asks an obviously biased venireperson enough questions that they eventually get the hint, no matter how stupid they are, and end up saying the magic words “I think I can be fair in this case”. Doesn’t really matter what they’ve said prior to that point, once we get to that incantation, the juror is deemed impartial and fit to serve on the jury.

You’d be a fool, however, to think that the juror has actually changed his or her views. Just ask Jose Felipe Velasco:

Jose Felipe Velasco insists Orange County Judge David A. Hoffer cheated him out of a fair trial by placing a juror on the supposedly neutral citizen’s panel after she repeatedly declared the defendant guilty before hearing any evidence.

But you knew that anyway from the title of this post. So how bad could it have really been? Very bad.

After an Orange County prosecutor gave an opening statement, Juror 112 notified Hoffer that based on her own experiences she believes criminals should forgo trials in such sexual assault cases and go straight to prison to spare victims additional turmoil.

The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?” Juror 112 responded, “I would have to vote guilty.”

…

The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.

“I don’t think I would be able to,” the juror replied.

The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”

Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.”

Had enough? Well, there’s more:

Hoffer, appointed to the bench in 2003 by Democratic Gov. Gray Davis, and the local government’s lawyer continued to ask questions and finally got her to say she “would try” to be a fair juror.

Over defense objections, the judge put her on the panel.

So, in his bid to get a new trial, Velasco was rebuffed because eventually the juror was berated and brow-beaten into saying “she would try to be fair”.1

Obviously, Velasco was found guilty and now, apparently, he has no review of his clearly illegal conviction.

They not only took this horse to water, but forced its mouth into the lake and made it swallow the company line. You might rationally argue that a prosecutor with a duty to ensure justice is done should not have pressed for the inclusion of this juror, but we already know that not all prosecutors are concerned with justice.

When you say you’re proud of the American system and that the system “works”, this is how it works.

[Update: Thanks to the comments below, we now have the actual opinion in this case. I have a follow up post on the opinion and the omission of certain “facts” from it and the reality that even judges engage in spin.]

First, the good change: they’ve added exceptions to the bill. It is now not illegal if the photo is taken in public of someone who is voluntarily exposing such part.

The more important exception in my opinion is the one that prohibits prosecution where you cannot identify the person in the photograph. This is really a smart addition because you can’t really show harm if no one knows it’s you in the photo.

But I wish the news were all good. The problem is that the language is still awful for three reasons:

1. It still makes it illegal if all you’re doing is “inten[ding] to annoy”. As I said before, that’s an incredibly low and amorphous standard. What is annoyance? Does what annoys me annoy you? How can we judge the criminality of an act based on something so fluid?

2 & 3. They’re related. Nowhere does the statute specify that any pictures so disseminated have to be naked pictures. In other words, simply an “image of (1) the genitals, pubic area or buttocks of such other person”.

Perhaps the term ‘genitals’ implies nudity, but certainly ‘pubic area’ and ‘buttocks’ are vague enough to encompass images where there is no nudity.

Of course, one can argue that the title of the statute ‘intimate images’ further implies a requirement of nudity, but the problem is that ‘intimate image’ isn’t defined anywhere either.

So we have a statute that is woefully vague and criminalizes far too much conduct that is, under no circumstances, criminal. It falls victim to the same problems the other overbroad victim-oriented statute in CT has: risk of injury to a minor.

That 39 legislators voted for it and no one has yet pointed out the clear problems with this is mind-boggling. When you, a year from now, wonder how a statute like this got passed, this is how.

For a short session of the legislature, there sure have been a large number of criminal justice bills already raised and considered by some committees. Today is no different, with a large number of “groundbreaking” bills being considered by the Judiciary committee. The public defender’s office and the CT Criminal Defense Lawyers Association have submitted written testimony on some or all of these bills1. What follows is what my testimony would be if they’d let me into the Capitol after that one time with the monkey and the backscratcher.

A perennial favorite of prosecutors, this bill has made its way back to the legislature. Year after year they bring up this bill, seeking to give themselves the power to just subpoena whoever and whatever to their office to conduct their investigations. Year after year this bill is defeated. But you gotta hand it to them, they keep trying.

And this iteration is slightly different. Instead of seeking to give themselves the power, they vest it in a “one person grand jury” – the presiding judge of the judicial district courthouse.

The rest of the shit is the same. As I wrote extensively last year, their standard for issuing subpeonas is the lowest, most nebulous, undefined piece of nonsense I’ve ever seen: the interests of justice.

What does that mean? Nothing. It’s not a real thing. It’s a free pass. The bill explicitlyremoves a requirement of probable cause and replaces it with this interest of justice nonsense.

What’s worse is that there’s nolimitation on when the investigative grand jury can be used. Under the law as it existed, the State’s Attorney had to make a showing that they’d made an effort using normal investigative tools. They have to show that their regular methods weren’t working and they needed this invasive tool to make one last ditch effort at cracking a case. If they hadn’t tried their normal methods, they had to include a statement saying why. In other words, accountability.

This proposal does away with that and replaces it with the sort of investigative subpoenas that are coercive and dangerous.

But go ahead, keep trusting the State to do its business in secret. That’s never backfired on us.

This is the bill that seeks to specifically criminalize the act of taking a nude photograph of a person who you were once intimate with and distributing that photograph on the internet without their permission.

Let’s be clear: it’s a totally douchey thing to do. It’s violative of someone’s trust and makes you out to be a complete asshole.

But is it a crime? Should it be a crime? Can it be a crime? These are the important questions.

As I understand it (and you really should read this post by Mark Bennett for a complete deconstruction of its unconstitutionality), a picture is speech. So when a picture is made public and the government seeks to put restrictions on it, it becomes a question of the Freedom of Speech which implicates the First Amendment.

That’s a content-based restriction: you’re restricting speech based on the content of it. For example, in 2010 in U.S. v. Stevens, the Supreme Court refused to find that “crush videos”2 were illegal.

But let us assume, for the purposes of this post, that “revenge porn” should and can be criminalized.3What would a bill look like? CT’s proposal is:

(a) A person is guilty of unlawful dissemination of an intimate image when, with the intent to harass, annoy, alarm or terrorize another person, such person electronically disseminates, without the consent of such other person, a photograph, film, videotape or other recorded image of (1) the genitals, pubic area or buttocks of such other person, or the breast of such other person who is female with less than a fully opaque covering of any portion of such breast below the top of the nipple, or (2) such other person engaged in sexual intercourse, as defined in section 53a-193 of the general statutes.

I’m just going to list the problems with this in bullet format, because it’ll be easier:

The “Intent to annoy” language. That’s exceedingly vague and a terribly low standard that’s so variable dependent on the person being so “annoyed”. Your face is annoying to me. Are you a criminal now?

“Electronically disseminates”. The bill seeks to criminalize electronic dissemination but nowhere defines that. What if I show the picture to my dying brother in the hospital room? What if I post it on a flyer on a lamppost outside my house?

“The genitals, pubic area or buttocks” apparently don’t need to be naked. So I can take a picture of your fat ass as you bend over to pick up a McFry and put it on the internet and now I have to go to jail because you have low self-esteem.

This might already exist. Here’s “Breach of Peace in the 2nd Degree“, which states, in relevant part: (a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person. Doesn’t that hit every note on the revenge porn bill? Why do we need a separate one again?4

The Search Warrant That Tracks Your Movement and Gets Your Email and Social Media

It’s innocuously named, but it covers a wide swathe and is important also for what it doesn’t cover. Primarily, the bill purports to bring into line our statutes to comply with two cases: U.S. v. Jones (the GPS case) and State v. Esarey (a case about out of state warrants for email). Also, this bill has nothing to do with the scope of search warrants for the search of your cell phone. That’s the subject of an upcoming column.

As for the GPS. the bill states that police can seek a warrant if they believe that “probable cause to believe that a criminal offense has been, is being, or will be committed and that the use of a tracking device will yield evidence of the commission of that offense”.

So almost immediately we hit upon the first problem: how will a tracking device provide evidence of a crime that has already been committed? Because the warrant seeks to authorize the attachment of a device that tracks the movement of a person or object. So unless that movement in the future (for up to 30 days – another problem with the length of time) corroborates a crime in the past, I see that portion as problematic.

Next, the scope. As it currently stands, there is no limitation on the scope of the data collected and what it can be used for. For example, if the warrant states that the data is being sought to prosecute a high-level drug trafficker and the data shows that the suspect was at the residence of his girlfriend, who has a protective order against him, can the information be used to prosecute him for that? Just like warrants for the searches of homes are very specific as to what can be sought and seized, so should any warrant for this “tracking data”.

If not, doesn’t it become closer to those general warrants the founding fathers of our country so hated?

Speaking of general warrants, the other part of the bill that seeks to address State v. Esarey also succumbs to the same problem. The section incorporates the warrant requirement discussed above and applies it to out of state providers of data “or business entity that provides electronic communication services or remote computing services to the public”. In other words, your email providers and Facebook and Twitter.

Now imagine that: the police believe that you are about to commit a crime, so they get a judge to issue a warrant for your emails. As we’ve already discussed above, with a lack of particularity requirement in the statute, they get everything. EVERYTHING. All your emails.

Worse, notice isn’t immediate, so you can’t move to quash the subpoena in time or file a motion seeking to limit its scope. The statute says that they have to let you know within 48 hours, but the company has only 5 days to provide all that data. There’s no provision that says they have to turn over the data unless there’s a motion to quash filed.

This is one strange bill. Not by itself. By itself it’s a “revision” to the eavesdropping statute. It states that no one shall record a private telephonic conversation without alerting the other party in various ways and obtaining that party’s consent. It then lays out various exceptions, including ones for law enforcement and:

(4) Any party who records a telephonic communication, provided the intent of the recording is to memorialize evidence of a crime before, during or after the fact and the unaltered and undisclosed recording must have been submitted to law enforcement within a reasonable amount of time;

One of the exceptions is also the corporation that provides these telephone services as defined in C.G.S. 53a-187(a)(1). This is important when you combine this bill with the next; it becomes a little confusing as to its purpose.

Remember that 53a-187 I just cited above? This one makes changes to that bill. And the change is good, but it’s still a bit confusing in context. The change essentially is that the exception to unlawful wiretapping doesn’t apply to law enforcement acting in the scope of their duties. “Scope of their duties” is amended to now include:

when such official (1) has probable cause to believe that the cellular radio telephone has been used in furtherance of the commission of a crime and has obtained a search warrant that authorizes wiretapping of the cellular radio telephone, or (2) is otherwise authorized by state or federal law to engage in wiretapping of the cellular radio telephone.

There is, of course, already a whole set of wiretapping statutes (54-41a-41u) which aren’t mentioned anywhere.

So I’m confused. Why did we need the previous bill? What does this do? What do any of them do to the actual wiretapping statute?

More importantly, why was this necessary? What are we trying to fix? Is there a problem of law enforcement listening to conversations without warrants and/or PC and if so, why haven’t we heard about it?

King Bruce of Scotland, you will recall, was a king driven into exile by those damn British. During the course of this, he was taking refuge in a cave, defeated, when he chanced upon a spider which was unable to spin a web, presumably having nothing to do with the fact that it was Scottish and hence drunk. So it tried and failed and tried and failed until it finally succeeded, which gave the Good King Bruce an epiphany that if you try enough times you will eventually succeed at what you want. He then promptly defeated the British and Scotland has been an independent country ever since but he doesn’t get nearly all the credit that Mel Gibson does presumably because he wasn’t wearing blue war paint.

Just last week, the Connecticut Appellate Court issued an opinion [PDF] endorsing the ‘King Bruce’ theory of prosecutions: try as many times as you want. But in order to understand the opinion in State v. Brundage II, you have to start at the beginning with State v. Brundage I.

In the beginning, Brundage was a creep. Over a period of roughly 8 years, he allegedly sexually assaulted his then-girlfriend’s daughter. The girlfriend ended the relationship in 2003 and the girl finally reported the abuse in 2007.

He was charged by the prosecution with two counts of Sexual Assault in the First Degree and two counts of Risk of Injury to a Minor. Out of all the possible crimes available to them, these are the two they chose to proceed on. Brundage, on cue, got convicted and was sentenced to a long time in jail.

Except he appealed, claiming that the criminal charges were actually barred by the statute of limitations. On appeal, the prosecution and the Appellate Court agreed that all charges for all incidents occurring prior to 2003 were barred and could not be prosecuted:

Thus, the only alleged offenses that are not time barred are those that occurred after May 22, 2002, because the current version of § 54-193a, which provides an extended limitation period, applies to those offenses. The defendant and the state disagree, however, as to the appropriate remand in these cases. The defendant urges us to set aside the judgments of conviction and direct the trial court to dismiss the charges. The state argues that we should remand the cases for a new trial, providing the state with the opportunity to amend the informations to allege only offenses that occurred after May 22, 2002. We conclude that the cases should be remanded for a new trial.

And so remanded for a new trial it was. Except now the State saw an opportunity. Instead of charging him again with two counts of Sexual Assault in the First Degree and two counts of Risk of Injury, simply for two incidents that occurred between 2002 and 2003, the State’s eyes lit up.

We can charge him with anything that isn’t time barred, they thought. And so they charged him with Kidnapping in the First Degree, a charge that has no statute of limitations and one that has a greater punishment than either Sex 1 or Risk of Injury.

To care about this story, you have to care about a few things like Due Process and the potential for abuse by prosecutors. If you don’t care about those things, you can stop reading now.

So Brundage filed a motion to dismiss, saying that the prosecution couldn’t add charges that it didn’t file the first time around. In effect, they were estopped from doing that because the remand of the case in Brundage I was very specific to the charges at issue.

The trial judge agreed with Brundage but unfortunately for him, the Appellate Court did not. It is important to note at this point that there is no commonality of judges between Brundage I and Brundage II.

After spending some pages extolling the law of prosecutorial discretion, the Appellate Court held last week that:

In light of those factual allegations, the state was well within its broad discretion to charge the defendant with the aforementioned offenses. The mandate of Brundage I is that the state could not proceed on any charges against the defendant that were time barred under General Statutes (Rev. to 1993) § 54-193a. The charges contained in the November 26, 2012 substitute information are not time barred under that statute. Accordingly, we conclude that the court improperly dismissed that substitute information.

…

In his appellate brief, the defendant alleges that ‘‘[t]he state is seeking to retry the defendant on the kidnapping charges only because the defendant successfully exercised his constitutional and statutory rights to contest the validity of the original prosecution.’’ That bald assertion is not accompanied by analysis or reference to any evidence indicative of such animus. As the state persuasively has argued in this appeal, its decision not to pursue the kidnapping charges at the defendant’s first trial ‘‘very well may have been influenced by the state of flux that existed in our kidnapping law in 2008 and 2009 . . . .’’ Absent any evidence to the contrary, we presume that the state did not harbor such animus toward the defendant, but rather acted to vindicate its legitimate interest in the prosecution of crime.

Did you get that? It’s okay for the State to add new charges that they previously did not, after the defendant won his appeal and got a new trial because they had [insert whatever excuse you want] that is presumptively legitimate and thus there is no indication of animus. Except that in the first appeal, the State sought only to try him again on the charges that he was originally charged with.

Prosecutorial discretion is the bogeyman that gives unfettered power to the prosecutors to do as they choose, frequently without having to provide an explanation for it.

If they felt that strongly that the defendant had kidnapped the victim, then why not charge that in the first instance? Is there an opportunity to perpetually subject the defendant to the stress and danger of criminal prosecution?

What if, for instance, they choose to charge only one instance of sexual assault in a trial, out of 50 alleged incidents? With a 30 year statute of limitations, does that mean that if the defendant keeps winning, they get to keep trying over and over again until they get a conviction?

Where does this end? Can the State try you first for a murder and then if you win, try you again for a felony murder?

Is the goal here to weave a web of fairness and justice or a trap of convictions?

What can be more frightening to the innocent man walking down a city street, minding his own business, when a bunch of thugs comes out of nowhere, and for no apparent reason, violently strikes that innocent man causing him physical injury?

Nothing, which is why there was widespread panic last year about the emergence of a new activity that further signaled the moral decay of America’s urban youth: the knockout game.

A game in which seemingly innocent people were randomly targeted to be punched in the head for no other reason than apparent boredom on the part of the hooligans.

And so it comes as no surprise that this viral act of violence that has put fear into the minds and hearts of innocent city working folk and has caused our urban areas to become veritable fields of random assaults has brought about a strict new legislative fix: by God we’ll fix ’em.

The new bill, proposed by legislator and Police Officer Joe Verrengia of West Hartford, CT, would make a “knockout” punch a felony punishable by up to 5 years in jail1. The bill states (and I’ve reproduced the entire section because context is relevant):

(1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or

(2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm; or

(3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(4) for a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to such person, without his consent, a drug, substance or preparation capable of producing the same; or

(5) he is a parolee from a correctional institution and with intent to cause physical injury to an employee or member of the Board of Pardons and Paroles, he causes physical injury to such employee or member; or

(6) with intent to cause the loss of consciousness of another person, he causes such injury to such person by a single punch or kick or other singular striking motion.

As you can see from the entire statute reproduced above, (6) is redundant. We must, of course, concede that “loss of consciousness” is “serious physical injury”. Putting aside caselaw that states that a fist or shoe can indeed be a dangerous instrument (thus covering subsections 2 and/or 3), subsection (6) seeks to carve out a specific subset of subsection (1), i.e. causing of serious physical injury. Subsection (1) has no restrictions on the type of injury (loss of consciousness) or the manner in which it is caused (single punch or kick).

So, simply put, (6) is useless. But that’s not all. The bill would make a conviction of subsection (6) have a mandatory prison sentence of at least 2 years.

You know how ridiculous that is? If you commit Assault in the Second Degree with a firearm, the mandatory sentence is 1 year. So it is worse to injure someone by “single punch or kick” as opposed to just shooting them.

So what’s going on here? Why this bill? Is the “knockout game” such a big problem in our cities that we need to send a strong message? Let me be clear: it is certainly quite distressing and scary to be suddenly and randomly attacked on the street by strangers for no reason whatsoever.

But the fact that some people do get attacked in such a way, doesn’t automatically equate to the existence of such a “knockout game”. In fact, evidence – not media spin – suggest quite the opposite.

First, let’s start with the one section of criminal justice system that Verrengia can’t argue with: law enforcement.

Yet police officials in several cities where such attacks have been reported said that the “game” amounted to little more than an urban myth, and that the attacks in question might be nothing more than the sort of random assaults that have always occurred.

And in New York City, police officials are struggling to determine whether they should advise the public to take precautions against the Knockout Game — or whether in fact it existed.

“We’re trying to determine whether or not this is a real phenomenon,” Police Commissioner Raymond W. Kelly said on Friday. “I mean, yes, something like this can happen. But we would like to have people come forward and give us any information they have.”

See that part where it says urban myth? That’s because there’s no trend of such a violent “game” on the rise in urban America. Can and do these attacks happen? Of course they do. Does that mean there’s a rise in hoodlums knocking you on your ass as you peaceably go to work? No.

Framing it as a game gives it a hook for the news media, but we already have a name for this type of thing: It’s a random street assault, a terrible phenomenon, but not a new one. And the language that kids and the news media have latched onto makes it sound both sinister and casual. It dramatizes the behavior, perversely elevating it above the senseless street violence that happens every day and has happened for decades. (There were more than 750,000 assaults in 2011, according to the FBI.)

You know what else is an indication that this is a media-fabricated myth? The fact that no one can agree on its name and that it’s been around forever:

The “Knockout King” or “Knockout Game” has been playing out for more than a decade on streets in New York, New Jersey, Michigan, Chicago, St. Louis, and now Washington D.C. in small numbers. But videos of the incidents have gone viral on the Internet, creating the illusion these things happen more often than they do.

“There is no evidence supporting this as a huge, viral number of attacks. If the ‘Knockout Game’ really exists and isn’t just a media label that could fit many of the hundreds of thousands of random attacks on strangers,” says Mike Males, senior researcher for the Center on Juvenile and Criminal Justice located in San Francisco. I’ve heard of incidents of this so-called Knockout Game dating back to 1996. It’s not new.”

The case for “myth” is bolstered further by the fact that the “knockout game” has been cited as far back as 1992, when it was compared to “wilding” as an example of dangerous teen behavior. What’s more, several widely circulated stories concerning the game have been debunked by websites such as Snopes, which note that they have no “verifying information.”

Of course there’s still the other dimension to this that I haven’t explicitly mentioned but that I’m sure you’ve caught on. Remember the scenario I opened with, with the man walking down the street, being assaulted? I’m gonna pull a Matthew McConanagjguahey: what race did you imagine them? Scientific studies2 show that most of you thought of them as black.

Think about who would be punished by Verrengia’s legislation? Who are going to be caught up in street arrests for assault in urban cities? Bouie again:

One last thing: Race is an obvious element in all of this. In almost every report, the assailants are described as young black men, and many of the victims have been white. It’s hard not to see the sensationalized coverage of “knockout”—and before that, “wilding”—as a reflection of our national fear of young black men. Indeed, in the more sinister corners of the Internet, you can find people who argue that these incidents are the opening shots in a “race war” by “feral black youth.”

[The four women] got together for dinner on December 14, 1991, a nice relaxing dinner. They had plans to go out after dinner. They were minding their own business when they were confronted with what suburbanites would call the ultimate urban nightmare.’

So perhaps I shouldn’t be surprised that either the legislators were oblivious to the racial undertones in the “knockout game” or ignored them altogether.

The perpetuated myth of the violent black juvenile is a hard one for people to let go of, even if it’s found to be based on nothing but their own ignorance and fear.

pictured: wilding

But that’s not all. I wish that was all.

In addition to this waste of space bill on a media perpetuated myth, Verrengia also wants to make sure that if you’re a juvenile, you’re sucker punched just as much as the person you sucker punch.

See, as I’ve written extensively, in CT if you’re between the ages of 14 and 17, you get automatically transferred to adult court only if you commit the most serious crimes: A and B felonies which carry prison sentences of 20 years or more. If you are charged with a less serious crime, like a C or D felony, you remain in juvenile court unless a prosecutor makes a motion to move the case to adult court and in that event you get a hearing before a judge in juvenile court.

Verrengia wants to make the “knockout game” the only Class D felony that gets automatically transferred to adult court. So, there are many, many crimes that are more serious than this assault (all Class C felonies, for instance) that may not end up in adult court, yet some punk kid who punches a dude on the street for no reason suddenly ends up in adult court facing a two-year mandatory minimum sentence.

One of the more important things I write about here at ‘a public defender’ is the notion that “Justice” is a complicated concept. It is not limited to what you are fed through your televisions and it is certainly not a government-centric idea.

Justice takes many obvious forms, such as the apprehension and conviction of a criminal. But limiting the definition of justice to something as simplistic as “good guys vs. bad guys” leaves you with a very narrow worldview and an over-inflated sense of morality.

Justice can mean that the right person was punished and that the punishment was just. Justice can mean standing up for unpopular causes, maybe sometimes precisely because they are unpopular.

The persecution of this nuanced meaning of justice, however, has never been more fervent than in this day of “speak by shouting at others” discourse and base politics that pander to ever-extreme hysterical idiots who have found a sure-fire method of whipping up political points and ire by removing any semblance of complexity from American politics and intellectual discussion.

I speak, of course, of the shameful defeat of the president’s nomination of Debo Adegbile to head the civil rights division at the Department of Justice. Joined by 7 democrats, Republicans torpedoed this highly qualified, lifelong public servant from running the civil rights division because a long time ago, he spent some part of his career working for the NAACP Legal Defense Fund, during which time he worked on a brief seeking to overturn the conviction of “noted cop-killer” Mumia Abu-Jamal.

Abu-Jamal, who killed a cop, is a hated man by many. He was sentenced to death, but because of the work of others, including Adegbile, a conservative Third Circuit Court of Appeals found that there was instructional error and reversed his sentence of death. Abu-Jamal was sentenced to life in prison without the possibility of release.

What, exactly, does this boil down to? What the’re saying, in effect, is that there is one kind of justice that’s acceptable and there’s another that’s not. That our founding principles are great, but only in name. And that hatred of cop killers will always trump everything else:

Sen. Chris Coons (D-Del.), who is facing reelection this year and whose state sits within the Philadelphia media market, said he thought Adegbile was well-qualified for the position, but was concerned that he would face “visceral opposition from law enforcement on his first day on the job,” citing the opposition to his nomination by several law enforcement organizations.

Adegbile was presumably only doing his job. I am only doing my job. But I also believe in what I do. That doesn’t make me a lesser person or any less deserving of a job that I am qualified for. The fact that I despise the death penalty is not a fault or a bug. The fact that I am highly skeptical of the Government’s power and their irresponsible exercise of that power doesn’t make me an amoral person. The fact that I have represented robbers and rapists and killers doesn’t make me one.

a referendum on the most basic premise of any functioning legal system: that even the guilty deserve representation and that the justice system cannot operate if we don’t work to correct systemic injustice. As the president of the American Bar Association, James R. Silkenat, was forced to explain to the Senate Judiciary Committee, “a fundamental tenet of our justice system and our Constitution is that anyone who faces loss of liberty has a right to legal counsel. Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government—even to those accused or convicted of terrible crimes.”

We became who we claim to be because we valued the rights of individuals above all else. Because we had people willing to fight for those who were minorities and whose positions were unpopular.

Imagine if Republicans had voted against Adegbile because he represented Edith Windsor or Mildred Loving? Would you be as outraged as you are now? What’s stopping you today?

This is what happens when we willingly accept a Fox News/Law and Order society: where everything is so black and white and you’re always good and they’re always bad.

A good, honest, hard-working man doesn’t get a job he deserves because our world has become so isolated and selfish and so mind-numbingly ignorant.

Update: As Scott points out, this “defense” of Adegbile by Sen. Harkin (2:00 mark) is well-meaning but also exposes the greater point that I’m talking about. Harkin says “not that he defended this person”, distinguishing the act of actually representing and fighting for the Constitutional rights of an individual at the trial level and “signing on an appeal”, which places the lawyer at a distance.

The implication, again, is that anyone who does represent cop-killers and child molesters is unworthy of political office or even recognition or any sort of reward.

Due process has always been an obstacle on the way to conviction, but we were always willing to pay it lip service:

In Oct. 1990, Sen. Orrin Hatch (R-Utah) passionately defended then-Supreme Court nominee David Souter, who faced criticism during his confirmation process for defending literacy tests in his home state of New Hampshire. Hatch noted that those tests were existing law at the time, and that Souter, as the state’s assistant attorney general, was required to defend them.

“It is not right to go back in hindsight and say he should not have done that; that that shows something wrong with him. Come on, that is what advocates do,” Hatch said at the time.

“If we are going to start using a nominee’s briefs against him in the confirmation process, we are going to be setting a shocking precedent,” he continued. “It would be a very, very dangerous message to send to lawyers: If you have any ambition to be a judge, you lawyers, do not represent controversial clients and be careful what you say on behalf of a client because you might be held responsible for the fact that the law was as it was at the time you made the statement.”

From the ‘don’t-try-this-at-home-kids‘ department, a truly flabbergasting story out of Illinois of hubris, hissy-fits and the Double Jeopardy Clause.

Today, the United States Supreme Court will meet to decide whether to hear the case of Esteban Martinez. Martinez is in an unusual position, however. He isn’t convicted of anything. In fact, he was acquitted of an assault. But the State of Illinois wants to get a second crack at him. They want to try him again. Because the first time around, they did absolutely nothing.

According to the report of proceedings, “the jurors were duly sworn by the clerk.” The court then provided the jurors with general, preliminary instructions. Thereafter, the court indicated to the State that it could proceed in presenting its case in chief. The following exchange then occurred:

“[The Prosecutor]: Your Honor, respectfully, the State is not participating in this case.

THE COURT: Defense?

[Defense Counsel]: Judge, we would waive opening statement.

T

HE COURT: The People may call their first witness.

[The Prosecutor]: Respectfully, your Honor, the State is not participating in this matter.

THE COURT: Does the defense wish to be heard?

[Defense Counsel]: I do, Judge.

THE COURT: Ladies and Gentlemen, we’ll take a ten-minute break.”

¶ 8 Upon the jurors leaving the courtroom, the following exchange occurred:

“[Defense Counsel]: Judge, the jury has been sworn. The State has not presented any evidence. I believe they’ve indicated their intention not to present any evidence or witnesses. Based on that, Judge, I would ask the Court to enter directed findings of not guilty to both counts, aggravated battery and mob action.

THE COURT: Do the People wish to reply?

[The Prosecutor]: No, your Honor. Respectfully, the State is not participating.

THE COURT: The Court will grant a motion for a directed finding and dismiss the charges.”

Some further details might help: the prosecution was for the assault of two men. For over a year, the prosecution couldn’t find the two men who were the alleged victims and had repeatedly requested continuances – which had been granted – for inability to locate the victims. When the trial finally started in May 2010, the case had been pending for over 4 years. On the morning of trial, the prosecution once again indicated that they didn’t know if their witnesses would be there. So the judge offered to start jury selection and give the prosecution some time to figure that out. The prosecution agreed.

Once jury selection was completed, the state again moved for a continuance on the basis that the two victims weren’t there. The judge noted that the state had twelve witnesses on its witness list and that it would certainly take a day or two to get through those witnesses, in which time police officers could go and track down the two victims to bring them to court.

Instead of accepting this incredibly generous and rational proposal, the prosecution decided to act like a whiny little baby and take its ball and go home:

[The Prosecutor]: Your Honor, just so your honor is aware, I know that it’s the process to bring them in and swear them in; however, the State will not be participating in the trial. I wanted to let you know that.

Words aren’t enough, so I present a moving picture:

Anyway, to cut to the chase, Supreme Court caselaw makes it pretty clear that once a jury has been empaneled and sworn in, ‘jeopardy attaches':

In fact, that’s one of the primary reasons why the prosecution cannot appeal an acquittal or a dismissal, except in very narrow, rare circumstances. Which is what they did in Martinez’s case. After having had their cake, they wanted to eat it too: they wanted to be able to re-try Martinez presumably now having found the missing witnesses.

Unsurprisingly, the Illinois Supreme Court agreed, finding that jeopardy hadn’t “technically” attached, because there was no risk of conviction, because the prosecution wasn’t playing. So even though the jury was impaneled and sworn in and ready to go, the minute the prosecution pulled the ball from under the judge’s feet, the trial was over and they should get to go again.

The problems with this are obvious to anyone who’s ever read a strip of Peanuts: Lucy pulls the ball and Charlie Brown goes falling on his ass. Again. And again. And again.

Condoning such a rule, in effect, signals that the prosecution can pull the ball out from under the defense as many times as it pleases and for no valid reason whatsoever. All it takes it for them to simply announce “we’re not participating” and they then hijack the justice system and force the judge to grant a continuance.

Remember that the State has few, if any, rights and the majority of the rights vest in the defendant. It is his right to a speedy trial and his right to an empaneled jury of his peers that is being defecated upon here.

Imagine a scenario where a prosecutor makes some terrible choices in jury selection and ends up with a jury of people he doesn’t like (read: minorities). Instead of putting on his case and leaving the fate of the defendant up to members of the community, he can reshuffle the deck in his favor by simply announcing he’s not going to play and continue to do so until he gets a jury he likes.

Or, if you really want to know how outrageous this is, employ the Matthew McConaughey technique and pretend that the prosecution is the defendant.

Just last year, in Evans v. Michigan, SCOTUS said that double jeopardy bars re-prosecution even when the acquittal was erroneously entered. They shouldn’t condone yet another abusive and blatantly unconstitutional practice by prosecutors.